Property Law Legal Research Blog

Short-Term Rentals and HOA “Residential Use Only” Covenants

ldunham@nlrg.com (Lee P. Dunham) — Wed, 01 Oct 2025 14:53:34 GMT

Lee Dunham—Senior Attorney

In the wake of the rise of online vacation rental platforms like Airbnb and VRBO, the modern trend in drafting restrictive covenants for planned communities or condominiums is to include a provision specifically addressing whether, and under what conditions, short-term rentals will be permitted. Older covenants, however, did not contemplate the widespread use of properties as short-term rentals, and typically contain only broad provisions restricting the properties to “residential use,” or limiting “commercial” or “business” use.

States are divided on the issue of whether use as a short-term rental violates such a commercial use prohibition, but the clear majority view is that it does not, unless the covenants specify rental duration terms or clearly articulate a prohibition against rentals of any duration. See, e.g., Slaby v. Mountain River Estates Residential Ass'n, Inc., 100 So. 3d 569 (Ala. Civ. App. 2012); Vera Lee Angel Revocable Tr. v. Jim O'Bryant & Kay O'Bryant Joint Revocable Tr., 2018 Ark. 38, 537 S.W.3d 254; Houston v. Wilson Mesa Ranch Homeowners Ass'n, Inc., 2015 COA 113, 360 P.3d 255; Wihbey v. Zoning Bd. of Appeals of the Pine Orchard Ass'n, 350 Conn. 87, 91, 323 A.3d 324, 326 (2024); Santa Monica Beach Prop. Owners Ass’n v. Acord, 219 So. 3d 111 (Fla. Dist. Ct. App. 2017); Grave de Peralta v. Blackberry Mountain Ass'n, Inc., 315 Ga. App. 315, 726 S.E.2d 789 (2012); Hiner v. Hoffman, 90 Haw. 188, 977 P.2d 878 (1999); Roaring Lion, LLC v. Exclusive Resorts PBL1, LLC, No. CAAP-11-0001072, 2013 Haw. App. LEXIS 231, 2013 WL 1759002 (Apr. 24, 2013) (unpublished opinion); Pinehaven Planning Bd. v. Brooks, 138 Idaho 826, 70 P.3d 664, 668 (2003); Wood v. Evergreen Condo. Ass'n, 2021 IL App (1st) 200687, 454 Ill. Dec. 484, 189 N.E.3d 1045, 1052, appeal denied, 451 Ill. Dec. 444, 183 N.E.3d 901 (2021); Applegate v. Colucci, 908 N.E.2d 1214 (Ind. Ct. App. 2009); Lowden v. Bosley, 395 Md. 58, 909 A.2d 261 (2006); Lake Serene Prop. Owners Ass'n Inc. v. Esplin, 334 So 3d 1139 (Miss. 2022); Mullin v. Silvercreek Condo., Owner's Ass'n, Inc., 195 S.W.3d 484 (Mo. Ct. App. 2006); Craig Tracts Homeowners' Ass'n, Inc. v. Brown Drake, LLC, 2020 MT 305, 402 Mont. 223, 477 P.3d 283 (Cf. Brandt v. R&R Mt. Escapes, LLC, 2025 MT 155, ¶ 1, 423 Mont. 100, 102, 572 P.3d 809 [prohibiting a short-term rental where, unlike in Craig Tracts, where only a "residential purpose" covenant was at issue, multiple covenants together clearly indicated the intent to prohibit commercial short-term rentals].); Elk Point Country Club Homeowners' Ass'n, Inc. v. K.J. Brown, LLC, 515 P.3d 837 (Nev. 2022); Town of Conway v. Kudrick, 175 N.H. 714 (2023); Mason Family Tr. v. Devaney, 2009-NMCA-048, 146 N.M. 199, 207 P.3d 1176; Russell v. Donaldson, 222 N.C. App. 702, 731 S.E.2d 535 (2012); Kinzel v. Ebner, 2020-Ohio-4165, 157 N.E.3d 898 (Ct. App.); Graham v. Reynolds, 2024 OK CIV APP 26, ¶ 18, 560 P.3d 51; Yogman v. Parrott, 325 Or. 358, 937 P.2d 1019 (1997); Cmty. Servs. Assocs., Inc. v. Wall, 421 S.C. 575, 808 S.E.2d 831 (Ct. App. 2017); Wilson v. Maynard, 2021 SD 37, 961 N.W.2d 596; Pandharipande v. FSD Corp., 679 S.W.3d 610 (Tenn. 2023); JBrice Holdings, L.L.C. v. Wilcrest Walk Townhomes Ass'n, Inc., 644 S.W.3d 179 (Tex. 2022); Scott v. Walker, 274 Va. 209, 645 S.E.2d 278 (2007); Wilkinson v. Chiwawa Comtys. Ass'n, 180 Wn. 2d 241, 327 P.3d 614 (2014); Forshee v. Neuschwander, 2017 WI App 43, 377 Wis. 2d 162, 900 N.W.2d 100.

In the handful cases in which courts have found that a short-term rental does violate a commercial use restriction, courts have focused on, or at least noted, the income-earning aspect of the transaction, as well as the frequency with which the property was rented. In Edwards v. Landry Chalet Rentals, LLC, 51,883 (La. App. 2 Cir. 02/28/18), 246 So. 3d 754, writ denied, 2018-0502 (La. 06/01/18), 244 So. 3d 437, the court found that a lakefront property owner violated a subdivision covenant prohibiting use of the property for “any commercial purposes” where the owner was a limited liability company, advertised the property on a vacation rental website, insured it with a commercial insurance policy, and leased it to 43 different occupants for approximately four nights on average over a two-year period, earning over $53,000.

In Eager v. Peasley, 322 Mich. App. 174, 911 N.W.2d 470 (2017), the court held that the transient use of a lakefront property for short-term rentals violated restrictive covenant barring “commercial use,” and discussed the significance of income earned by the owner in characterizing it as a commercial endeavor.

In Hensley v. Gadd, 560 S.W.3d 516, 519 (Ky. 2018), the court deemed the use of a property for vacation rental at $300 to $375 per night to violate a restriction on business use, where the owner had registered his business as a “hotel” and collected taxes accordingly from guests, and single-night rentals brought the use within the definition of a “hotel” under Kentucky law.

Finally, in Morgan v. Townsend, 2023 ME 62, ¶ 32, 302 A.3d 30, 40, the frequency of rentals was a determinative factor in the court’s finding that the owner’s short-term rentals were a business use: “A household that puts items in the driveway to sell on one Saturday is holding a garage sale; a household that does it every Saturday is operating a flea market business.… [Defendant’s] pattern of use, maintenance, advertising, and holding out of his property brings his rentals squarely within the definition of a business, such as a ‘hotel.’”

In the jurisdictions that have not clearly found that a short-term rental qualifies as a “residential use,” counsel advising prospective short-term landlords should inquire thoroughly into the facts, including the planned frequency of rentals and the tax and financial structure of the operation. Clients should be informed that operating the rental in a more “businesslike” fashion, under an LLC or other business entity, registered as a “hotel” or other business, with regular advertising, substantial profits, or frequent guest turnover, is more likely to result in their short-term rental being deemed impermissible under a Condominium Owners Association or Homeowners Association residential-use-only restriction.

SCOTUS: Government Cannot Sell House to Recover Unpaid Taxes and Keep the Excess

rwestendorf@nlrg.com (Robert Westendorf) — Mon, 06 Nov 2023 18:23:38 GMT

Robert Westendorf—Research Attorney

Ninety-four-year-old Geraldine Tyler lived in a condominium for more than a decade before moving to a senior community in 2010. Tyler v. Hennepin County, 143 S. Ct. 1369, 2023 U.S. LEXIS 2201, at *5-6 (May 25, 2023). Nobody paid the property taxes on the condo, and by 2015, $15,000 in unpaid taxes and penalties was owed. 2023 U.S. LEXIS 2201, at *6. Hennepin County seized the property and sold it for $40,000, thus extinguishing the $15,000 debt. If this had happened in one of 36 states, Tyler would have gotten the excess $25,000 back. Id. at *14. However, when property is sold due to the failure to pay taxes in Minnesota, proceeds in excess of the tax debt remain with the county. Id. at *5.

Ms. Tyler brought suit, alleging violations of the Takings Clause of the Fifth Amendment and the Excessive Fines Clause of the Eighth Amendment. Id. at *6. The lower courts ruled against Ms. Tyler. The Supreme Court reversed. Id. at *6-22. Writing for a unanimous court, Chief Justice Roberts determined that Ms. Tyler had standing. Id. at *8. The Court then stated that the question was whether the $25,000 is “property under the Takings Clause, protected from uncompensated appropriation by the State.” Id. at *9. In determining what is property, the Court would look to traditional property law principles, historical practice, and the Court’s precedents. Id.

Beginning with the Magna Carta, there was a principle that the government cannot take more from a taxpayer than what is owed, and this principle continued throughout English history and the early history of America. Id. at *10-11. An Act of Congress and State laws said the government could seize and sell only as much land as was needed to collect the taxes owed. Id. at *12. Hennepin County identified three states that considered property entirely forfeited for failure to pay taxes, but two of those laws were short-lived, and there is no evidence that Louisiana’s law was enforced. Id. at *14.

Precedent also cut against the County’s position. When a taxpayer had an unpaid tax bill for $170.50, and the federal government had seized the property and kept it for itself at a value of $1,100, the Court held the taxpayer was entitled to a surplus because withholding the surplus would violate the Fifth Amendment. Id. at *16 (citing United States v. Lawton, 110 U.S. 146, 149-50 (1884)). The County cited Nelson v. City of New York, 352 U.S. 103 (1956), where New York City foreclosed on properties for unpaid water bills. 2023 U.S. LEXIS 2201, at *16. The ordinance gave owners time to ask for the surplus from any tax sale. Id. There was no takings clause violation, because the ordinance did not completely stop an owner from getting the surplus back. Id. at *17 (citing Nelson, 352 U.S. at 110). By contrast, Minnesota’s scheme “provides no opportunity for the taxpayer to recover the excess value.” Id.

The Court also examined how Minnesota recognizes in nearly every other context that a property owner is entitled to surplus in excess of her debt. Id. at *18. “Minnesota may not extinguish a property interest that it recognizes everywhere else to avoid paying just compensation when it is the one doing the taking.” Id. at *19.

Finally, the County argued that Tyler constructively abandoned her home by failing to pay her taxes. Id. at *19. But the County had pointed to no case where failure to pay property taxes was sufficient to constitute abandonment. Id. at *20. Minnesota’s forfeiture scheme had nothing to do with abandonment; it does not care about the taxpayer’s use of the property but only cares about whether taxes were paid. Id. at *21. That was no abandonment at all. Id.

Chief Justice Roberts concluded that “[t]he taxpayer must render unto Caesar what is Caesar’s, but no more.” Id. at *22. Since the Court concluded that a taking under the Fifth Amendment was plausibly alleged, they did not decide the Eighth Amendment question. Id.

Justice Gorsuch wrote a concurring opinion that Justice Jackson joined, where he suggested there was an excessive fines clause issue. Id. Gorsuch explained why he disagreed with the district court’s analysis of the issue and concluded that statutes similar to the one at issue here are “fines by any other name,” and thus subject to the Excessive Fines Clause. Id. at *22-25.

Effect of Divorce on Judgment Lien for the Debt of One Spouse

bpettit@nlrg.com (D. Bradley Pettit) — Thu, 27 Oct 2022 14:03:33 GMT

Brad Pettit—Senior Attorney, National Legal Research Group

A recent decision by the District of Columbia Court of Appeals indicates that since a judgment for the debt of only one spouse does not attach to property held by the judgment debtor and his or her spouse as tenants-by-the-entireties, the nondebtor spouse takes the subject property free from a judgment lien against the debtor spouse's property even if the spouses’ divorce and the former couple's divorce decree and property settlement agreement calls for the debtor spouse to transfer to the nondebtor spouse his or her share of the couple's tenancy-by-the-entireties property. Blount v. Padgett, 261 A.3d 200 (D.C. 2021). In Blount, the court relied upon the rule that “[a]lthough the characteristics of a tenancy by the entireties include ‘an inability of one spouse to alienate his interest,’ Morrison [v. Potter], 764 A.2d [234,] 236 [(D.C. 2000)], one spouse can voluntarily ‘relinquish [and convey] his or her interest to the other.’ Clark [ v. Clark], 644 A.2d [449,] 452 [(D.C. 1994)]. Id. at 203. The Blount court also cited the District of Columbia rule, which is not followed in all jurisdictions, that "a lien that cannot attach to property held as tenants by the entireties during a debtor's marriage will not necessarily attach to the property upon the debtor's divorce." Id. at 204. Finally, the Blount court ruled that the transfer by the husband to his wife of his tenancy-by-the-entireties interest in property, pursuant to the parties' divorce decree and property settlement agreement, did not qualify as a "fraudulent conveyance" by the debtor spouse to his nondebtor spouse. Id. at 207.

Although the issue did not arise in Blount, one wonders if the same result would obtain in a case where the holder of a judgment against one spouse can show that the nondebtor spouse had directly or indirectly benefited from the debt or obligation that was incurred by the debtor spouse. In Blount, the judgment in question was against the husband for his law firm's legal malpractice, which suggests that the nondebtor spouse did not benefit directly or indirectly from the husband's debt.

An excellent summary of the Blount decision can be found in 36 Keeping Current—Property, Probate and Property 20 (ABA Mar./Apr. 2022), edited by Prof. Shelby D. Green, Elisabeth Haub School of Law, Pace University, White Plains, NY 10603, sgreen@law.pace.edu; contributor Prof. Darryl C. Wilson.

Short-Term Rentals, Such as VRBO and Airbnb, and Use Restrictions

aedwards@nlrg.com (Alistair D. Edwards) — Wed, 13 Apr 2022 14:24:51 GMT

Alistair Edwards—Senior Attorney, National Legal Research Group

It is not unusual for homes in a subdivision to be subject to restrictive covenants limiting the owners’ use of their property to residential purposes and/or prohibiting the use of the property for commercial, trade, or business purposes. This sort of restriction can also be found in instruments such as declarations governing condominium or townhouse communities. With the increasing popularity of programs such as VRBO and Airbnb, numerous courts have recently dealt with the issue of whether these so-called short-term rentals violate these sort of use restrictions. So far, the courts, strictly construing the covenants, have been fairly hesitant to find a violation.

For example, recently in Lake Serene Property Owners Association v. Esplin, No. 2020-CA-00689-SCT, 2022 WL 713417 (Miss. Mar. 10, 2022), the Mississippi Supreme Court held that a homeowner's use of his property for short-term rentals was a “residential use” and, thus, did not violate the restrictive covenants governing the subdivision and limiting use to residential use. The court emphasized that the property was being used as a place of abode, the house was rented anywhere from one day to thirty days, the renters used the property to eat, sleep, and bathe, all commercial activity and exchange of funds occurred online and not on the property, and there were no signs or offices located on the property. To support its decision, the court cited decisions from several other states including Alabama, Florida, and Texas. See Santa Monica Beach Prop. Owners Ass'n v. Acord, 219 So. 3d 111 (Fla. Dist. Ct. App. 2017).

However, not every court that has dealt with this issue has permitted these short-term rentals to prevail over these types of restrictions. For example, in Wood v. Evergreen Condominium Association, 2021 IL App (1st) 200687, appeal denied, No. 127545, 2021 WL 6500616 (Ill. Nov. 24, 2021), an Illinois appellate court held that the owner’s use of her condominium unit for a short-term rental (the owner was using Airbnb) constituted a business in violation of the section of the declaration which prohibited the use of units for business. The court explained that “[the owner] is engaged in a business enterprise in that she is providing her short-term renters with a service and a product—use of her unit as an accommodation—in exchange for payment.” Id. ¶ 36. Interestingly, in that case, the court held that the owner was not violating the restriction in the declaration prohibiting leasing, because it considered the Airbnb arrangement to be a license agreement and not a lease agreement. However, the owner could not overcome the business restriction.

Reimbursement of Tenant for Improvements to Leased Premises

bpettit@nlrg.com (D. Bradley Pettit) — Thu, 16 Dec 2021 14:08:06 GMT

Brad Pettit—Senior Attorney, National Legal Research Group

Although the general rule is that in the absence of an express agreement between a landlord and a tenant to the contrary, the tenant cannot recover from his or her landlord the costs of improvements that he or she made to the leased residential property, recent decisions by Idaho trial and appellate courts in the same case suggest that a tenant can obtain equitable restitution from his or her landlord on the grounds of unjust enrichment for improvements to the leased premises that he or she made while the parties were mutually contemplating a future conveyance of the premises to the tenant as long as the landlord was aware of the improvements and never objected to them. Asher v. McMillan, No. 47684, 2021 WL 443227, at *4 (Idaho Feb. 9, 2021) (not yet released for publication; until released, it is subject to revision or withdrawal). It is significant to note that the Asher court ruled that although the parties' relationship was grounded in contract, the tenants were not limited to seeking legal relief under breach-of-contract theories and could obtain restitution from their landlord under the equitable theory of unjust enrichment:

[W]e can infer from the district court's findings that the Ashers were not "mere tenants" when they made the electrical improvements and removed the tree. The district court's determination that the Ashers were not officious intermeddlers was based not only upon the contract between the parties, but also upon the nature of the improvements themselves. Specifically, the district court found that the Ashers' expectation of ownership was demonstrated by repairs that were "beyond what mere tenants typically make to a rental property." Because electrical improvements and tree removal are beyond the repairs typically undertaken by "mere tenants," we will not upset the district court's award of restitution for these improvements. Reding v. Reding, 141 Idaho 369, 372, 109 P.3d 1111, 1114 (2005) ("A trial judge's findings of fact in a court-tried case will be liberally construed on appeal in favor of the judgment entered, in view of the trial judge's role as trier of fact.").

In light of Hertz [v. Fiscus, 98 Idaho 456, 567 P.2d 1 (1977)], Haskin [v. Glass, 102 Idaho 785, 640 P.2d 1186 (Ct. App. 1982)], and the Restatement, the facts in the record support the district court's determination that McMillan would be unjustly enriched if he were to retain the Ashers’ improvements without paying for their value. The district court did not abuse its discretion in awarding restitution to the Ashers.

Id. at *5-6.

The Asher decision is a warning to landlords who stand idly by and allow tenants to make significant improvements to the leased premises, especially if the parties may have intended that the tenant would eventually acquire the property from the landlord but the acquisition part of their arrangement is/was either uncertain or falls through.

The reader is advised to consult 50-APR Real Estate Law Report NL 2 (Westlaw Apr. 2021) for an excellent discussion of the Asher case and how the trial and appellate judges reached their decisions.

Landlord’s Due Process Rights Not Violated by COVID-19 Moratorium on Evictions

aedwards@nlrg.com (Alistair D. Edwards) — Thu, 18 Nov 2021 15:17:10 GMT

Alistair Edwards—Senior Attorney, National Legal Research Group

As a result of the COVID-19 public health emergency, various states and municipalities around the country have imposed moratoriums on evictions and prohibited landlords for a certain period of time from filing eviction complaints for possession of real property. For example, on March 17, 2020, the Council of the District of Columbia enacted a variety of measures to prevent the spread of COVID-19 and protect District residents. Included among these measures was a moratorium on evictions "during a period of time for which the Mayor has declared a public health emergency."

In District of Columbia v. Towers, 21-CV-34, 2021 WL 4617981 (D.C. Oct. 7, 2021), the District of Colombia's highest court considered whether this moratorium violated the landlords' due process right to access the courts. The case came to the appellate court after the District's lower court (the Superior Court) held that the moratorium on eviction filings for the duration of the public health emergency was unconstitutional. Specifically, the lower court held that the moratorium infringed on property owners' fundamental right of access to the courts because "[a] landlord's interest in summary resolution of its claims against a tenant has a constitutional basis." The District of Columbia appealed the lower court’s decision.

In reversing the lower court's decision, and in holding that the moratorium did not facially violate the landlords' due process right of access to the courts, the court emphasized that the moratorium only temporarily delayed access, it did not abrogate contracts or deprive the landlords of their ability to file for eviction. The court went on to explain that the temporary filing moratorium did not eliminate tenants' lease obligations, including the payment of rent, or alter property owners' title to their property. After the moratorium is lifted, property owners would be able to file for eviction and pursue related claims. Therefore, the filing moratorium involved no abrogation of contracts or deprivation of the ability to file for eviction.

As of the writing of this article, the moratorium remains in place. However, the newly enacted legislation does allow a landlord to file suit for possession before that date based on non-payment of rent, property damage, or public safety concerns. D.C. Code § 16-1501(c)(1).

Virginia Civil Forfeiture Eclipsed by Tenancy-by-Entirety Immunity

tsifka@nlrg.com (Trish Sifka) — Wed, 12 May 2021 15:40:41 GMT

Trish Sifka—Senior Attorney, National Legal Research Group

An English Judge and Jurist, Sir Edward Coke, declared in 1604: “[T]he house of everyone is to him as his Castle and Fortress as well for defence against injury and violence, as for his repose[.]” This famous quote from the Court of King’s Bench has been simplified to essentially mean that “every man’s home is his castle” and, thus, deserves special protection. Sir Coke stated this as part of his ruling in Peter Semayne v. Richard Gresham & Estate of George Berisford. Gresham and Berisford were joint tenants of a house in Blackfriars, London. Berisford died while still owing a debt to Semayne, so Semayne sued for writ of attachment against the home.

In Virginia, real property held as tenancy by the entirety is especially sacrosanct. Where a tenancy by the entirety in the fee simple is created, the property is completely immune from the claims of creditors against either husband or wife alone. Rogers v. Rogers, 257 Va. 323, 512 S.E.2d 821 (1999); Pitts v. United States, 242 Va. 254, 408 S.E.2d 901 (1991). “The tenancy by the entirety may be severed only by mutual consent of the spouses or by divorce.” In re Bunker, 312 F.3d 145, 151 (4th Cir. 2002); see also In re Sampath, 314 B.R. 73, 92 (Bankr. E.D. Va. 2004) (“The tenancy by the entirety estate retains its full vitality in Virginia.”). Accordingly, a spouse cannot waive contest to forfeiture of real property held as tenancy by the entirety in a plea agreement because that would result in severing of the title without the other spouse’s consent. The Virginia Supreme Court reaffirmed state support of this view in Jones v. Phillips, ___ Va. ___, ___, 850 S.E.2d 646, 650 (2020) (discussing the 2000 General Assembly’s breaking of new ground by "authorizing a husband and wife to convey certain tenancy by the entirety real estate to their joint revocable or irrevocable trust, or in equal shares to their separate revocable or irrevocable trusts without losing its tenancy by the entirety status” in Va. Code Ann. § 55.1-136). Immunity for tenancy by the entirety held by spouses flows from the nature of the property classification as a matter of law (unlike the innocent owner defense available in forfeiture cases under Va. Code Ann. § 19.2-386.8, which requires that a spouse establish lack of culpability for property to not be subject to seizure). However, in United States v. Franco, No. 5:14CR00011, 2017 WL 3187392 (W.D. Va. July 26, 2017), a federal court determined that such state designation for protection of real property would not shield the real property from civil forfeiture under federal forfeiture statutes.

State forfeiture actions can be viewed differently with the absence of federal preemption at issue. Virginia’s 2020 amendments to its state civil forfeiture statute heightened general protection of a property owner’s rights by requiring a stay of forfeiture action until the owner of the property is “found guilty of any offense that authorizes forfeiture of such property[.]” Va. Code Ann. § 19.2-386.1(C) (emphasis added). Critically, this amendment also did not remove the above immunity for real property held as tenancy by the entirety. Further, the Virginia General Assembly in 2020 solidified the government’s higher burden in the seizure of real property versus personal property. Even in drug-related transactions, “real property shall not be subject to lawful seizure unless the minimum prescribed punishment for the violation is a term of not less than five years” in state forfeiture actions. Va. Code Ann. § 19.2-386.22(A)(i). Accordingly, to be in conformity with the language and intent of these new amendments to Va. Code Ann. § 19.2-386.1 and the nonseverability of tenancy by the entirety properties, a Virginia state court arguably cannot grant forfeiture of real property unless both spouses are found guilty or have pleaded guilty to the appropriate offense granting forfeiture of such property.

Landlord Liability for Wrongful Death

bpettit@nlrg.com (D. Bradley Pettit) — Mon, 21 Dec 2020 15:38:37 GMT

Brad Pettit—Senior Attorney, National Legal Research Group

In a very recent ruling that was consistent with prior Virginia state court decisions that favor residential landlords in cases involving personal injury suits by tenants against landlords, a federal district court sitting in Virginia dismissed wrongful death and intentional infliction of emotional distress ("IIED") actions by the plaintiff, a mobile home owner, against a mobile home park lot owner that arose when a decaying tree fell on the plaintiff's mobile home and crushed her son to death. Darlington v. Harbour E. Vill. LLC, No. 3:20cv157-HEH, 2020 WL 3979664 (E.D. Va. July 14, 2020) (slip copy) (only the Westlaw citation is currently available), appeal filed (4th Cir. Aug. 11, 2020). Even though there was evidence that prior residents in the mobile home park had warned the lot owner at least three times about the decaying tree and the dangers that it posed, the Darlington court ruled that, in the absence of a statutory or common-law duty on the part of the mobile home park lot owner/lessor to the mobile homeowner/lot lessee to maintain a safe condition of the lot, the plaintiff could not bring a wrongful death claim against the lot lessor:

Without more, the parties' landlord-tenant relationship alone will not suffice to establish a common law duty. Not only was this relationship premised upon a contract, the Agreement, but the relationship itself also cedes many responsibilities to the tenant. See Paytan v. Rowland, 155 S.E.2d 36, 37 (Va. 1967) ("[A landlord has] no duty to maintain in a safe condition any part of the leased premises that [is] under [a tenant's] exclusive control."). The terms of the Agreement suggest that the landscape, which included the trees, was a part of the leased premises under Darlington's exclusive control. (See Agreement at 3 ("Tenant shall maintain and cut the lawn and maintain the landscape, plants and trees, except that such plants or trees shall not be removed or disturbed without the prior written consent of [Defendant].").)

Id. at *5.

In dismissing the plaintiff's wrongful death claim, the Darlington court also relied on a 2007 Virginia Supreme Court decision in which it was held that in enacting the Virginia Residential Landlord and Tenant Act,

the General Assembly did not plainly manifest an intention, either through express language or by necessary implication, to abrogate the common law and make a landlord liable in tort for a tenant's personal injuries sustained on leased premises within the tenant's control and possession as a result of the landlord's breach of duties imposed by the Act. Instead, the Act provides a comprehensive scheme of landlords' and tenants' contractual rights and remedies.

Id. at *6 (quoting Isbell v. Comm'l Inv. Assocs., Inc., 273 Va. 605, 618, 644 S.E.2d 72, 78 (2007)).

As to the plaintiff's IIED claim against the mobile home park lot owner, the Darlington court ruled that, where the parties' relationship is contractual only, "[l]iability [for IIED] has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community." Id. at *7 (quoting Russo v. White, 241 Va. 23, 27, 400 S.E.2d 160, 162 (1991), which discusses the tort of "outrage").

Since the plaintiff in Darlington filed an appeal of the district court's adverse ruling, it will be interesting to see whether the U.S. Court of Appeals for the Fourth Circuit continues to follow the Virginia state court decisions that are landlord-favorable in cases involving personal injury or wrongful death claims by tenants against their landlords.

Landlord Tenant/Constructive Eviction and Breach of Covenant of Quiet Enjoyment

bpettit@nlrg.com (D. Bradley Pettit) — Thu, 25 Jun 2020 15:03:45 GMT

Brad Pettit, Senior Attorney, National Legal Research Group

An unreported mid-level appellate decision by a Pennsylvania Superior Court illustrates that courts take a dim view to a residential landlord's attempt to defend against breach of covenant of quiet enjoyment and constructive conviction claims against him or her by a tenant by asserting that the parties' dispute stemmed from a good-faith mistake or misunderstanding. In Grodin v. Farr, No. 45 WDA 2019, 2020 WL 919200 (Pa. Super. Ct. Feb. 26, 2020) (nonprecedential decision), the court rejected a landlord's claim that he did not breach the covenant of quiet enjoyment or constructively evict his tenants by changing the locks on their unit because he mistakenly assumed that the tenants had received a key to the back door from the previous tenants and could still gain access to the leased premises.

In reaching its decision, the Grodin court noted that "[i]n every lease of real property, there will be implied a covenant of quiet enjoyment" and "[c]onstructive eviction is one species of a violation of the lessee’s right to quiet enjoyment." Id. at *4 (citing Pollock v. Morelli, 369 A.2d 458, 460 (Pa. Super. Ct. 1976); Sears, Roebuck & Co. v. 69th St. Retail Mall, L.P., 126 A.3d 959, 973 (Pa. Super. Ct. 2015); Kohl v. PNC Bank Nat’l Ass’n, 912 A.2d 237, 249 (Pa. 2006)). As to the landlord's argument that he did not actually intend to block the tenants' enjoyment of the leased premises by changing the locks, the Grodin court ruled as follows:

In the case at hand, we must look to Landlord’s actions and their effect on Tenants, and not to Landlord’s intentions. Regardless of whether he intended to lock out Tenants, by changing the locks on the front door, Landlord prevented Tenants from accessing the leasehold. This Court has consistently found constructive eviction where access to the premises was merely altered or limited in such a way that the utility of the premises was substantially decreased. Thus, we must certainly conclude that constructive eviction has been established where, as here, Landlord’s actions completely denied Tenants’ access to the property, and where Tenants abandoned the premises as a result.

Id. at *6. For another summary of the Grodin case, see Quinlan, Landlord Tenant Law Bulletin, Vol. 41, Issue No. 4 (Apr. 2020).

The decision in Grodin is a clear advisory to landlords that they must be very careful when engaging in any act or conduct, even if done in good faith and without malicious intent, that might be construed as trying to prevent tenants from fully and quietly enjoying leased premises.

Court Requires Cemetery to Remove a Decedent Mistakenly Buried in Plaintiff's Gravesite

aedwards@nlrg.com (Alistair D. Edwards) — Thu, 02 Apr 2020 16:13:53 GMT

Alistair Edwards—Senior Attorney, National Legal Research Group

It is not uncommon for an individual to purchase a specific cemetery gravesite or gravesites many years in advance with the plan for family members to all be buried in the same area. That was the exact plan of the plaintiff, Kathy Salyer. In 1982, after the death of her first husband, Salyer purchased four contiguous gravesites in the cemetery comprising lot 14. Later that year, Salyer purchased an additional gravesite (Gravesite 15) contiguous to lot 14. Salyer possessed a Certificate of Ownership for each purchase. Salyer intended to bury her mother in Gravesite 15 and to have herself buried in the empty site between her first and second husbands. Despite Salyer's plan, she discovered in 2014 that a stranger, Mr. Johnson, had been buried in Gravesite 15. The cemetery acknowledged that it had made a mistake and had sold Gravesite 15 twice, first to Salyer and then to Mr. Johnson's family. Salyer's purchase of Gravesite 15 had not been entered in the cemetery's records, causing the cemetery's sale agent to sell the site twice.

Salyer filed an action against the cemetery, seeking an order to have the cemetery reinter the decedent, Mr. Johnson, who had been mistakenly buried in the gravesite. Mr. Johnson's daughter intervened in the action, objecting to the removal of her father's body from the gravesite.

The trial court took the position that the gravesite was real property and the purchase of a gravesite is a real estate transaction. The court considered Salyer's request, to reinter the decedent, as an action for specific performance. This was an equitable remedy in which the court had discretion whether to grant Salyer's request or fashion some alternative remedy. In balancing the equities between the parties, the court considered that Salyer had failed to provide a reason why the specific gravesite was significant to her future family burial plans. Salyer's mother, who was supposed to be buried in the gravesite, had already been cremated and buried in her deceased husband's different gravesite.

The intermediate court of appeals in Salyer v. Washington Regular Baptist Church Cemetery, 135 N.E.3d 955 (Ind. Ct. App. 2019), agreed with the trial court that reinterring Mr. Johnson would be traumatic for his family. Consequently, that court affirmed the trial court's decision to refuse Salyer's request to reinter the decedent. Instead, Salyer was awarded a different gravesite adjacent to the lot of sites containing Salyer's various family members and husbands.

However, the Supreme Court of Indiana in Salyer v. Washington Regular Baptist Church Cemetery, No. 20S-PL-102, 2020 WL 1164272 (Ind. Mar. 11, 2020), subsequently held that the trial court and the court of appeals properly recognized that Salyer was entitled to relief but that Indiana's wrongful burial statute should govern. Pursuant to Ind. Code Ann. § 23-14-59-2, when a wrongful burial occurs, "the cemetery owner shall . . . correct the wrongful burial . . . after becoming aware of the error." According to Indiana's high court, this meant that the cemetery be required to correct the wrongful burial by removing Johnson's remains from the gravesite and restoring it for Salyer's use. The case was remanded to the trial court in order to carry out this order.